Rob Douglas' column appears Fridays in the Steamboat Today. He can be reached at rdouglas@SteamboatToday.com.
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Steamboat Springs The question being asked throughout the Yampa Valley this week is: Why wasn't Eduardo Capote Jr. charged with manslaughter, instead of assault, for his role in the death of Sgt. 1st Class Richard Lopez?
And it's not just average folks like you and me asking the question. Those who know the facts best - the Steamboat Springs Police Department - are asking the same question.
It's a good question made even more relevant by the allegations contained within the affidavits for arrest warrants for Eduardo Capote and his brother David.
It's a good question that deserves a better answer than the official responsible for the charging decision, District Attorney Elizabeth Oldham, has provided so far.
The Colorado Revised Statutes define manslaughter - the charge local police wanted for Eduardo - as: "A person commits the crime of manslaughter if such person recklessly causes the death of another person."
Assault in the second degree - the most serious offense Eduardo Capote faces - is defined as: "A person commits the crime of assault in the second degree if with intent to cause bodily injury to another person, he causes serious bodily injury to that person or another."
Given those definitions, it's hard to fathom why Oldham charged Eduardo with assault, instead of manslaughter, when the evidence used as the basis for the current charges indicates he is the individual who threw the punch that caused Lopez to strike his head on the ground and die - arguably a case of recklessly causing the death of another person if ever there was one.
The affidavit for the arrest warrant for Eduardo Capote, prepared and sworn to by Detective Dave Kleiber, of the Steamboat Springs Police Department, is replete with evidence of reckless actions by both the Capote brothers.
- Dr. Doberson, the coroner who performed Lopez's autopsy, told Detective Kleiber that "Richard Lopez's injuries were consistent with being punched a single time under the chin, being knocked unconscious, falling backward in an 'unprotected fall,' then striking his head on the road surface."
- During the autopsy, Kleiber observed "additional bruising on Richard Lopez's arms and chest that may have been caused by the Capotes punching and kicking Lopez while he was unconscious on the ground.
- One witness saw a man (identified by police as Eduardo Capote) charge from the corner into the middle of the street with "flying fists" and punch Lopez one time and Lopez falling to the ground. The witness did not see Lopez do anything threatening.
- The same witness recorded cell phone video that "... shows the figure of a person punching at another person." A man's voice is yelling "Boom ... Boom" each time a punch is thrown. A woman is screaming, "David stop it. ... Stop it. ... David stop it!" Finally, a man is heard saying "Miami! Don't (expletive) with."
- A second witness saw a man (identified by police as Eduardo Capote) who took off his jacket and ran up and hit Lopez with a "running good punch," a "sucker punch" to the face. The witness said that it was "not mutual combat and did not think Lopez even saw his attacker."
- A third witness saw "two males near the male on the ground trying to prevent two other males from punching and kicking the person lying on the ground. One of the men was 'throwing drunken haymakers' as those who were trying to protect the unconscious Lopez yelled, 'Dude stop' and 'We're not like trying to fight' and 'Leave him alone.'"
With those allegations, plus the statement of District Attorney Oldham that Eduardo Capote "did intend to cause (Lopez) harm and even death," it's hard to understand why Oldham choose assault instead of manslaughter.
And it's not as if the charge of manslaughter - which is consistently defined across the country - hasn't been used in similar circumstances. I worked close to 100 murder cases as a private detective in Washington, D.C., and had several cases where fistfights resulting in fatal brain injuries were charged as manslaughter.
While we should all give District Attorney Oldham the benefit of the doubt, I suspect there are more than a few of us who would like a clearer explanation for her decision to not charge Eduardo Capote Jr. with manslaughter. Hopefully, Oldham will provide that explanation.